BUTTLER, P. J.
Plaintiffs, trustees of the Oregon Laborer’s Employer’s Trust Fund, brought this action under section 301(a) of the Labor Management Relations Act (LMRA) (29 USC § 185) and section 502 of the Employment Retirement Income Security Act (ERISA) (29 USC § 1132) to recover unpaid employe benefit contributions payable under a collective bargaining and trust agreement. The trial court awarded plaintiffs $25,919.34 for unpaid contributions, 12 percent interest on that amount from February 28, 1981, and $6,100 for attorney fees, plus costs and disbursements. Defendant Thatcher appeals, and plaintiffs cross-appeal. We affirm in part and reverse in part.
Thatcher (defendant) owns and operates a drilling and blasting business (defendant M.T.D.&B., Inc.). On September 8, 1978, he entered into a laborer’s compliance agreement with Local 320 of the Oregon, Southern Idaho and Wyoming District Council of Laborers, under which he agreed to be bound by the terms and conditions of the Master Labor Agreement (MLA) between the council and the Associated General Contractors of America, Inc. The MLA provided that defendant was to contribute to the Oregon Laborer’s Employer’s Trust Fund, a third-party beneficiary of the MLA established to administer employe fringe benefit payments. No contributions were made, and this action ensued.
The trial court found that the compliance agreement, commonly referred to as a pre-hire agreement, was authorized by section 8(f)1 of the LMRA, 29 USC § 158(f). Section 8(f) provides an exception for the building and construction industry to the general rule that an employer who signs a collective bargaining agreement with a union that does not represent a [103]*103majority of the employer’s present work force commits an unfair labor practice. NLRB v. Iron Workers, 434 US 335, 344-45, 98 S Ct 651, 54 L Ed 2d 586 (1978); Operating Eng. Pen. Trust v. Beck Eng. & Surveying, 746 F2d 557 (9th Cir 1984). If the employer is primarily engaged in the building and construction industry, the exception applies and, if the agreement has not been repudiated before the union achieves majority status, then the monetary obligations assumed under it are recoverable under section 301 of the LMRA. Jim McNeff, Inc. v. Todd, 461 US 260, 103 S Ct 1753, 75 L Ed 2d 830 (1983).
Defendant first assigns as error the trial court’s conclusion that he was an employer “engaged in the building and construction industry.” He contends that he is a mere supplier of raw materials (rock) and is, therefore, outside the scope of the section 8(f) exception. Accordingly, as an affirmative defense, he asserts that the agreement was illegal and therefore void and unenforceable. See Kaiser Steel Corp. v. Mullins, 455 US 72, 102 S Ct 851, 70 L Ed 2d 833 (1982).
Defendant’s company drills and blasts rock, both in quarries and at specific road sites.2 Although we assume for [104]*104the purpose of our analysis that drilling and blasting quarry rock is not within the ambit of the building and construction industry, drilling and blasting at specific road sites is, and those engaged in that activity are part of the construction industry. It follows that, in order to prevail on the affirmative defense of illegality, defendant bore the burden of proving that he was primarily engaged in the blasting of quarry rock, rather then blasting at specific road sites. No evidence was offered, however, concerning the percentage of work performed at specific road sites, as compared to that performed in quarries. Accordingly, we conclude that there was sufficient evidence to support the trial court’s finding that defendant was primarily engaged in the building and construction industry.
In his second assignment, defendant contends that the trial court erred in finding that he had employes doing work that was covered by the pre-hire agreement, because plaintiffs did not prove that each individual employe for whom contributions were sought was performing the type of work covered.3 That burden, however, was on defendant. Although section 8(f) pre-hire agreements are authorized only when an employer is engaged primarily in the building and construction industry, no similar limitation restricts the employes covered. It is sufficient that the employes be “engaged (or * * * upon their employment, will be employed) in the building and construction industry.” 29 USC § 158(f). That requirement is satisfied if a “substantial part” of the work performed by the employes is in the building and construction industry. Operating Eng. Pen. Trust v. Beck Eng. & Surveying, supra, 746 F2d at 564.4 To avoid liability with respect to a specific employe, therefore, defendant bore the burden of proving that the [105]*105employe was not substantially engaged in the building and construction industry. Because there was no evidence offered on this issue, it was not error to hold that all of defendant’s employes were so engaged.
Defendant argues in his third assignment that the trial court erred in concluding that “at no time did [he] repudiate the laborer’s compliance agreement.” He contends that the agreement was repudiated at its inception by his overt noncompliance with the terms of the MLA or, in the alternative, that he expressly repudiated it later.
Section 8(f) pre-hire agreements may be repudiated by the employer at any time before the union achieves majority status among the business’ employes. Jim McNeff, Inc. v. Todd, supra, 461 US at 271. The repudiation may be express or implied, but it must provide the union with sufficient notice of the employer’s intent not to honor the agreement. 461 US at 270-71 n 11. Whether sufficient notice has been given raises a question of fact for the trier of fact. Therefore, we are bound by the trial court’s finding, unless there is no evidence to support it. Illingworth v. Bushong, 297 Or 675, 694, 688 P2d 379 (1984).
Defendant argues that his continuous noncompliance with the MLA provided sufficient notification of his intent to repudiate. He points to his failure to hire any union employes, his failure to file, or the filing of false, monthly reports specifying the number of compensable hours worked by his employes, and his failure to make monthly contributions to the union trust fund. Although we agree that those acts and omissions evidence overt noncompliance, we hold that defendant did not manifest his intention to repudiate the pre-hire agreement until he submitted his April, 1980, report, discussed below.
Defendant’s conduct is similar to that of the employer in Jim McNeff, Inc. v. Todd, supra. There, the employer filed monthly reports with the false notation that “no members of this craft were employed during this month.” The court held that, by filing the falsified reports, the employer “misled the union of its true intention never to fulfill its contractual obligations” and, consequently, that the employer’s conduct did not constitute sufficient notice to the union of its intent to repudiate the contract. 461 US at 270. [106]*106Here, defendant failed to file reports from November, 1978, until September, 1979. Beginning in September, 1979, however, he filed four consecutive monthly reports. Although those reports, as in Jim McNeff,
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BUTTLER, P. J.
Plaintiffs, trustees of the Oregon Laborer’s Employer’s Trust Fund, brought this action under section 301(a) of the Labor Management Relations Act (LMRA) (29 USC § 185) and section 502 of the Employment Retirement Income Security Act (ERISA) (29 USC § 1132) to recover unpaid employe benefit contributions payable under a collective bargaining and trust agreement. The trial court awarded plaintiffs $25,919.34 for unpaid contributions, 12 percent interest on that amount from February 28, 1981, and $6,100 for attorney fees, plus costs and disbursements. Defendant Thatcher appeals, and plaintiffs cross-appeal. We affirm in part and reverse in part.
Thatcher (defendant) owns and operates a drilling and blasting business (defendant M.T.D.&B., Inc.). On September 8, 1978, he entered into a laborer’s compliance agreement with Local 320 of the Oregon, Southern Idaho and Wyoming District Council of Laborers, under which he agreed to be bound by the terms and conditions of the Master Labor Agreement (MLA) between the council and the Associated General Contractors of America, Inc. The MLA provided that defendant was to contribute to the Oregon Laborer’s Employer’s Trust Fund, a third-party beneficiary of the MLA established to administer employe fringe benefit payments. No contributions were made, and this action ensued.
The trial court found that the compliance agreement, commonly referred to as a pre-hire agreement, was authorized by section 8(f)1 of the LMRA, 29 USC § 158(f). Section 8(f) provides an exception for the building and construction industry to the general rule that an employer who signs a collective bargaining agreement with a union that does not represent a [103]*103majority of the employer’s present work force commits an unfair labor practice. NLRB v. Iron Workers, 434 US 335, 344-45, 98 S Ct 651, 54 L Ed 2d 586 (1978); Operating Eng. Pen. Trust v. Beck Eng. & Surveying, 746 F2d 557 (9th Cir 1984). If the employer is primarily engaged in the building and construction industry, the exception applies and, if the agreement has not been repudiated before the union achieves majority status, then the monetary obligations assumed under it are recoverable under section 301 of the LMRA. Jim McNeff, Inc. v. Todd, 461 US 260, 103 S Ct 1753, 75 L Ed 2d 830 (1983).
Defendant first assigns as error the trial court’s conclusion that he was an employer “engaged in the building and construction industry.” He contends that he is a mere supplier of raw materials (rock) and is, therefore, outside the scope of the section 8(f) exception. Accordingly, as an affirmative defense, he asserts that the agreement was illegal and therefore void and unenforceable. See Kaiser Steel Corp. v. Mullins, 455 US 72, 102 S Ct 851, 70 L Ed 2d 833 (1982).
Defendant’s company drills and blasts rock, both in quarries and at specific road sites.2 Although we assume for [104]*104the purpose of our analysis that drilling and blasting quarry rock is not within the ambit of the building and construction industry, drilling and blasting at specific road sites is, and those engaged in that activity are part of the construction industry. It follows that, in order to prevail on the affirmative defense of illegality, defendant bore the burden of proving that he was primarily engaged in the blasting of quarry rock, rather then blasting at specific road sites. No evidence was offered, however, concerning the percentage of work performed at specific road sites, as compared to that performed in quarries. Accordingly, we conclude that there was sufficient evidence to support the trial court’s finding that defendant was primarily engaged in the building and construction industry.
In his second assignment, defendant contends that the trial court erred in finding that he had employes doing work that was covered by the pre-hire agreement, because plaintiffs did not prove that each individual employe for whom contributions were sought was performing the type of work covered.3 That burden, however, was on defendant. Although section 8(f) pre-hire agreements are authorized only when an employer is engaged primarily in the building and construction industry, no similar limitation restricts the employes covered. It is sufficient that the employes be “engaged (or * * * upon their employment, will be employed) in the building and construction industry.” 29 USC § 158(f). That requirement is satisfied if a “substantial part” of the work performed by the employes is in the building and construction industry. Operating Eng. Pen. Trust v. Beck Eng. & Surveying, supra, 746 F2d at 564.4 To avoid liability with respect to a specific employe, therefore, defendant bore the burden of proving that the [105]*105employe was not substantially engaged in the building and construction industry. Because there was no evidence offered on this issue, it was not error to hold that all of defendant’s employes were so engaged.
Defendant argues in his third assignment that the trial court erred in concluding that “at no time did [he] repudiate the laborer’s compliance agreement.” He contends that the agreement was repudiated at its inception by his overt noncompliance with the terms of the MLA or, in the alternative, that he expressly repudiated it later.
Section 8(f) pre-hire agreements may be repudiated by the employer at any time before the union achieves majority status among the business’ employes. Jim McNeff, Inc. v. Todd, supra, 461 US at 271. The repudiation may be express or implied, but it must provide the union with sufficient notice of the employer’s intent not to honor the agreement. 461 US at 270-71 n 11. Whether sufficient notice has been given raises a question of fact for the trier of fact. Therefore, we are bound by the trial court’s finding, unless there is no evidence to support it. Illingworth v. Bushong, 297 Or 675, 694, 688 P2d 379 (1984).
Defendant argues that his continuous noncompliance with the MLA provided sufficient notification of his intent to repudiate. He points to his failure to hire any union employes, his failure to file, or the filing of false, monthly reports specifying the number of compensable hours worked by his employes, and his failure to make monthly contributions to the union trust fund. Although we agree that those acts and omissions evidence overt noncompliance, we hold that defendant did not manifest his intention to repudiate the pre-hire agreement until he submitted his April, 1980, report, discussed below.
Defendant’s conduct is similar to that of the employer in Jim McNeff, Inc. v. Todd, supra. There, the employer filed monthly reports with the false notation that “no members of this craft were employed during this month.” The court held that, by filing the falsified reports, the employer “misled the union of its true intention never to fulfill its contractual obligations” and, consequently, that the employer’s conduct did not constitute sufficient notice to the union of its intent to repudiate the contract. 461 US at 270. [106]*106Here, defendant failed to file reports from November, 1978, until September, 1979. Beginning in September, 1979, however, he filed four consecutive monthly reports. Although those reports, as in Jim McNeff, included the false notation that defendant had no employes, they nevertheless provide evidence in support of the trial court’s holding that defendant did not repudiate the pre-hire agreement prior to May, 1980, when the report for April, 1980, was received.
Beginning with the one for April, 1980, all of the reports filed by defendant included a notation that defendant would no longer abide by the terms of the pre-hire agreement.5 We conclude that, as a matter of law, those reports provided the union with sufficient notice of defendant’s intention to repudiate the agreement. Therefore, defendant is not liable for amounts claimed with respect to work performed after the union received the April report.
On cross-appeal, plaintiffs claim that the trial court erred in holding that liquidated damages provided in the trust agreement6 were discretionary, and in refusing to award them. Plaintiffs contend that section 502(g)(2) of ERISA, 29 USC § 1132(g)(2),7 mandates such an award. Although section [107]*107502(g)(2) does mandate liquidated damages in actions brought under ERISA by a fiduciary for or on behalf of a trust fund, section 502(e)(1)8 provides that federal courts have exclusive jurisdiction over such actions. Consequently, 502(g)(2) is inapplicable. The trial court’s disallowance of liquidated damages was therefore proper.9 See Shaw v. Northwest Truck Repair, 273 Or 452, 460-62, 541 P2d 1277 (1976); Paddock v. Furtick, 78 Or App 49, 714 P2d 1068 (1986).
Finally, defendant contends that the award to plaintiffs of attorney fees of $6,100 was too much, and plaintiffs, on cross-appeal, contend that it was too little. We find no error.
On appeal, affirmed in part, reversed and remanded to redetermine damages; affirmed on cross-appeal.